Kailondo Wins Big Against GT Bank-To Receive USD 3,670,000.00 in Damages

MONROVIA – The Civil Law Court Annex “B”, Sixth Judicial Circuit of Montserrado County, sitting in its June Term 2022 has handed down a verdict in favor of Cllr. George B. Kailondo, representing his company, Kailondo Petroleum, Inc in his claims of Action of Damages for wrong filed against the Guaranty Trust Bank (GT Bank) represented by its management and has ordered the bank to pay to Kailondo two sets of damages, one for “Special damage” in the tone of USD420,000.00 and the other for General Damages for USD 3,250,000.00, totaling USD 3,670,000.00.

Wherefore and in view of the above holding and finding, it is the determination and Final Judgment of this Court that the claim of the Plaintiff is hereby sustained and the defense and counterclaim of the Defendant are overruled, denied and dismissed.

“Accordingly, it is the ruling and final judgment of this court that the Defendant is adjudged LIABLE to the Plaintiff and is hereby ordered to pay to the plaintiff as Special Damages the amount of USD420,000.00(Four Hundred Twenty Thousand United States Dollars) plus six percent legal interest per annum calculated from the year 2015 up and including the date of final judgment in this case; additionally, the Defendant is also adjudged liable to pay to Plaintiff as General Damages the amount of USD3,250,000.00(Three Million Two Hundred Fifty Thousand United States Dollars) for all the inconveniences, losses and embarrassment caused the plaintiff by the Defendant in the illegal debits/withdrawal from Plaintiff’s Accounts and the damaging of Plaintiff’s reputation by the Defendant; this court also rules that the Defendant is Liable to pay all costs of these proceedings”, the as read by Judge Yamie Quiqui Gbeisay Sr, said.

According to court records obtained by The Analyst, Kailondo had approached the court on September 28, 2021, and filed a complaint against the GT Bank calling on the court to hold the Defendant(GT Bank) liable for illegally debiting Plaintiff(Kailondo) account for various amounts without any authorization from the Plaintiff and withholding said damages in an amount less than USD 2,500,000.00 for the injury and tortuous account carried out by the defendant against the plaintiff by illegally plaintiff accounts without authorization and also by destroying the plaintiff’s character and business image through a Non-Compliance letter written on August 12, 2022 to all commercial banks making plaintiff to appear as risk.

“Plaintiff also claimed special damages in the amount of USD420, 000.00(Four Hundred and Twenty Thousand United States Dollars) representing the balance of the money illegally debited from Plaintiff’s account and being held by the defendant”, part of the judgment read.

The judgment also said that the defendant on September 22, 2021, filed its answers containing 51 counts and along with it, also filed a motion to dismiss on the ground of Lis pendens. It said in the defendant’s motion to dismiss , the defendant requested the court plaintiff’s entire action Lis pendens, because period after filing this suit, the plaintiff as private prosecutor filed a criminal action against defendant, by and through the Republic for restitution of the amount it alleged was wrongfully debited by the defendant.

“On October 15, 2021, plaintiff filed its reply consisting of eighteen (18) counts to defendant’s answers along with its resistance to defendant’s motion to dismiss. The court heard and denied the defendant’s motion and ruled the case to trial on its merit. The court, in its ruling on the motion, held that the Law rely on the movant is inapplicable because the causes of action, as well as the parties and the reliefs sought to be granted were not one and the same. One case is criminal (Public wrong) where the Party Plaintiff is the Republic of Liberia and the other case is civil (private wrong) where the party plaintiff is Kailondo Petroleum Inc”, the judgment read.

Court records also revealed that there was a pre-trial conference conducted at which time both parties represented by their respective legal teams presented their sides of the story including witnesses. The two parties having submitted their respective issues, the court then proceeded to make a determination.

“As to the first issue raised by the defendant which is whether or not the civil law court may legally proceed to hear the plaintiff complaints when there is pending in another a lawsuit growing out of the same transaction involving the same parties?, the court says this issue is moot and does not deserved any consideration in this final judgment because the very issue has already been held and disposed of by a previous judge of concurrent jurisdiction and those ruling is a basis on which this trial is being or was conducted. In other words, the issue of the criminal case was not part of this trial and therefore the ruling of colleague or concurrent jurisdiction is hereby confirmed and affirmed and as such incorporated into this judgment.

“The second presented by the defendant is whether or not a contention which was resolved through negotiation and compromise can be litigated when the party pursuing litigation had earlier executed an instrument accepting the compromise and undertaking no further claim?” the judgment said.

The court observes that in response to this  contention of the defendant, the plaintiff argued that a settlement agreement being introduced by the defendant is not applicable or binding or because , according to the plaintiff when a settlement agreement resulting from negotiation is to be used in evidence, the general rule is that both parties to that settlement or compromise must fully observe or comply with the said compromise or settlement totally. The plaintiff contended that its performance or adherence to that compromise was conditioned upon the prior fulfillment of the obligation undertaken by the defendant.

“In other words, the plaintiff contended that for it to be bound by the compromise or settlement agreement that plaintiff could not sue for damages, that commitment of plaintiff was based on the prior commitment or the defendant to reimburse the plaintiff of its total amount of USD510,000.00. Plaintiff contented that even though the said amount was credited back to the plaintiff’s account by the defendant, yet the said defendant prevented the plaintiff from having access to the total amount, and that obstruction by the defendant against the plaintiff having access to all its monies constituted a violation of the settlement agreement, and therefore the plaintiff was no longer bound by the terms of the said settlement agreement”, the judgment said.

The third issue raised by the defendant raised by the defendant was whether or not the debit by defendant from plaintiff’s account as settlement of the letter of credit issued in favor of plaintiff by the defendant, the amount of USD3,464,999.55 as the value of the letter of credit of the maturity date instead of USD3,300,000.00 which is the value of the letter of credit on the inception date where the letter of credit provided for a +/-10% tolerance in the supply of the petroleum product subject of the Letter of Credit is unauthorized and therefore illegal and wrong where Plaintiff received Petroleum products under the Letter of Credit within the +/- 10% tolerance level?

The court answers this question in the affirmative and says that indeed the debits to the Plaintiff’s account were unauthorized and as such illegal because during the trial, the Defendant admitted carrying out the said debits and attempted to justify the said withdrawals by saying that the Plaintiff authorized the said withdrawals. But during trial, when asked to produce the said authorizations, the Defendant’s witnesses told the court that the authorizations issued by the Plaintiff could not be’ located and were never located from the year 2015 or 2016 up to and including the date of the trial, and because they could not locate the said authorizations, they, the Defendant were constrained to re-credit the Plaintiff’s t account with these amount.

“The court says the admission by the Defendant witnesses to the effect that these debits could not be backed by authorizations issued by the Plaintiff amount to an admission which must operate against the Defendant. The admission by the Defendant therefore presents a prima facie case by the Plaintiff for which the Defendant must be adjudged Liable”, the judgment said.

The fourth issue raised by the Defendant is: Whether the reversals of credits made by a bank based upon return of checks by the issuing bank upon presentation of the said checks for clearing are unlawful and wrong?

“The court, in answering this question, says ordinarily when checks are returned unpaid from clearing, it is not wrong for the bank to reverse the credit of its customer whose check was returned unpaid; this is the general rule. In this instant case, even though the Defendant contended that the postdated checks issue by the Plaintiff were returned unpaid by the paying bank, yet when the Plaintiff requested to see the returned checks from the paying bank, the Defendant failed and refused to present said unpaid checks to the Plaintiff, thereby leaving a doubt as to whether or not the said checks were actually unpaid. More importantly the Plaintiff contended that even though the Defendant said the Plaintiff’s Checks were returned unpaid by the paying bank, and even thought the physical checks were never presented to the Plaintiff by the Defendant, yet the said checks were registered as debits on the Plaintiff’s personal accounts twice and never reflected on the Plaintiff’s business accounts as credits. This fact was established from a review of the Plaintiff’s printed-out statements of accounts produced by the Defendant”.

Considering the variance found in the testimonies of the witnesses the court  said that there is a doubt created by the two witnesses for the Defendant stating facts in opposition to one another, because assuming without admitting that the Defendant brought proof of the Plaintiff’s indebtedness to the Defendant for which a counter claim would lie, the court is left to wonder by what amount the Plaintiff is indebted to the Defendant; whether the USD$250,000.00 is to be included in that debt or is to be disregarded.

“Under the law, when a party claims a debt, the amount of that debt must be certain and clear, because if the amount is uncertain and not clear, then it is regarded as speculative, uncertain and contingent, and the Supreme Court has said that any amount claimed that is uncertain, speculative and contingent will be disallowed. In this case because of the variance in the testimonies of Defendant two witnesses, the amount claimed by the Defendant as a counterclaim, has to be denied and overruled—because it is uncertain, unclear and contingent besides the fact the Defendant did not produce any evidence to prove that counterclaim.

“The court observes that the Plaintiff provided evidence, both oral and documentary, to prove its claims against the Defendant; whereas, the Defendant entire case rested upon general denials without any positive or affirmative evidence; even more beside that, the Defendant did not produce any evidence to establish its counterclaim. The court therefore is left with no alternative but to believe and give credence to the Plaintiff’s claims and contention based on the evidence produced. In the mind of the court, the Plaintiff established its case by a preponderance of the evidence, and by the production of prima facìe evidence. In common law jurisdictions, a- reference to prima facie evidence denotes evidence that, unless rebutted, would be sufficient to prove a particular proposition or fact. Most legal proceedings, in most jurisdictions, require a prima facie case to exist following which proceedings may then commence to test it and create a ruling.

“In the instant case the court finds and holds that it is satisfied that the Plaintiff established the liability of the Defendant and the resultant damages arising there from by preponderance of evidence. The Black law dictionary abridged Eighth edition at page 991 defines preponderance of evidence as follows: “The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to fact, but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. This is the burden of proof in more civil trials in which the jury is instructed to find for the party that, on the hold, has the stronger evidence, however slight the edge may be”. From the analysis of the evidence adduced from both sides, this court is absolutely convinced that the plaintiff sufficiently met the above standard of proof and lack of certainty”, a greater portion of the judgment read. See text of the Court’s ruling on page 6 & 7 of this edition.

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